The United States and British bribery laws are stronger but the differences are marginal.

The three regimes are based on the Organisation for Economic Co-operation and Development’s anti-bribery convention. The US outlaws a failure to keep accurate records – a sort of Al Capone clause for pinning executives for technical breaches. And Britain bans facilitation payments: small payments to low-level workers for routine administrative functions. Facilitation payments can be used as a defence in the US and Australia but has never been used here.

The reason is that there has only been one case for bribery ever brought in Australia: the ongoing case against Reserve Bank of Australia’s note-printing subsidiaries.

At the moment, we are relying on foreign regulators such as the US Securities and Exchange Commission, which is investigating
BHP Billiton
. It collected $1.8 billion in fines in 2010 compared to our scoreless record. It will take years before any court case is decided in the current
Leighton
bribery scandal. The government has hinted it will respond by considering a dedicated anti-bribery agency. It is one way to solve the problem but an expensive and unnecessary one.

The better response is to clearly establish whether the Australian Federal Police or Australian Securities and Investments Commission have responsibility for policing the laws or to establish a joint taskforce such as Project Wickenby which pursued tax evaders.

ASIC should audit high-risk companies with operations in Asia and the Middle East as they do for financial advisers, accountants and liquidators. The regulator could issue guidance to exert pressure on companies to rein in discretionary spending for sales executives and agents overseas.

Whistleblowing laws could be strengthened. Shockingly, they only apply to public servants in Australia.